CBF Issues Notice of Intent to Sue EPA over Failure to Hold Pennsylvania and New York Accountable

Maryland, Virginia, and the District of Columbia Also Take Legal Action

(ANNAPOLIS, MD)—Today, the Chesapeake Bay Foundation (CBF) and its partners filed a notice of intent to sue the federal Environmental Protection Agency (EPA) for its failure to require Pennsylvania and New York to develop implementation plans that will achieve the 2025 Bay restoration goals. Partners in our filing include the Maryland Watermen’s Association, Bobby Whitescarver (a farmer from Swoope, Virginia), and Anne Arundel County, Maryland.

Underscoring the importance of holding EPA accountable, the Attorneys General in Maryland, Virginia, and the District of Columbia also filed a notice that they intend to sue EPA as well.
A recording of the May 18, 2020 press call is available at the bottom of this page.

“EPA has failed to uphold its Clean Water Act responsibilities. It has failed to implement the Chesapeake Clean Water Blueprint. This has been ongoing for years, well before the COVID-19 pandemic, and the damage done will last far beyond the pandemic,” said CBF President William C. Baker. “Ensuring the implementation of the Blueprint has been CBF’s top priority for over 10 years. It is essential the courts hold EPA accountable. There is no doubt that if Pennsylvania and New York fail to do their fair share the Bay will never be saved.”

“The Chesapeake Bay is one of our country’s most valuable natural resources,” said Maryland Attorney General Brian E. Frosh. “Restoring the health of the Bay will take a coordinated, multistate effort with every state sharing the burden. The EPA has abandoned its responsibility to regulate and manage the efforts of the Bay states and together, we fully intend to hold the EPA accountable and not allow it to step away from its regulatory duty.”

“Protecting and restoring the Chesapeake Bay requires a comprehensive effort by each of the watershed states as well as the EPA,” said Virginia Attorney General Mark Herring. “As the administrator of the Chesapeake Bay Agreement, the EPA must treat each of the partners equally and make sure every state is pulling its weight and upholding its portion of the agreement, but instead, the Trump EPA simply rubberstamped plans that are plainly inadequate. I hope we are able to come to an understanding that is beneficial for all parties, while keeping the health of the Bay at the forefront.”

Over the last dozen years, CBF has used litigation sparingly, but effectively, to advance Bay restoration efforts. In 2009, CBF sued EPA for its failure to enforce the Clean Water Act and ensure that Bay restoration succeeds.

The settlement of that lawsuit included the science-based limits established by EPA for pollution fouling the Chesapeake Bay and its rivers and streams. The states developed individual plans to achieve those limits and committed to two-year milestones that outline the actions they will take to achieve those limits by 2025. And, most importantly, EPA committed to imposing consequences for failure. Together, the limits, plans, milestones, and consequences make up what is known as the Chesapeake Clean Water Blueprint.

Shortly after the Blueprint was established, the American Farm Bureau Federation and its allies sued EPA in federal court claiming that the pollution limits and plans were illegal. CBF intervened on EPA’s behalf, defending the legality of the Blueprint.

The Blueprint was upheld by a federal court judge in Pennsylvania, who found that the federal/state partnership was legal, calling it an example of the “cooperative federalism” that is called for in the Clean Water Act.

The decision was appealed to the federal Third Circuit Court of Appeals. There, CBF continued to argue that the Blueprint was legal pointing to the damage done to local communities and businesses that depend on clean water.

Once again, the appeals court upheld the Blueprint, reaffirming EPA’s authority. The court also addressed the requirement that state plans provide ‘reasonable assurance’, saying that EPA’s acceptance of plans without such assurance would be arbitrary and capricious.

The Blueprint opponents asked the U.S. Supreme Court to review the lower court’s decision. The Supreme Court declined, leaving the Third Circuit Court of Appeals ruling to stand.

The Clean Water Act requires EPA to ensure the states design and implement plans to meet their clean water commitments. After years of failed voluntary efforts, this oversight and accountability is critical.

The Chesapeake Clean Water Blueprint will only be successful if each jurisdiction meets its pollution-reduction goals in accordance with the established pollution limits. This is especially true for Pennsylvania, and to a lesser degree New York, because the Susquehanna River provides roughly half of the Bay's fresh water as well as almost half of the nitrogen pollution.

EPA’s recent evaluation of New York’s plan noted that the state’s nitrogen shortfall exceeded 1 million pounds annually and failed to adequately identify funding sources for meeting agricultural and stormwater commitments.

Pennsylvania’s plan to meet the 2025 goals contains improvements over past plans, including prioritized county-level plans. However, as approved by EPA, it would only achieve roughly 73 percent of its 31-million-pound nitrogen-reduction commitment, and the implementation plan is underfunded by nearly $324 million dollars a year.

Despite the deficiencies, EPA took no steps to hold either state accountable to their Blueprint obligations. EPA should either have required the states to design plans to fully meet the pollution reduction goals including identifying the necessary funding, or imposed consequences. EPA’s acceptance of New York and Pennsylvania’s plans last year was a violation of the agency’s responsibilities.

“CBF has a long history of working in Pennsylvania to improve local waters and the Bay downstream. The problem in the Commonwealth is not the lack of people and partners on the ground willing to reduce pollution in local waterways,” said CBF Pennsylvania Science Policy and Advocacy Director, Harry Campbell. “The problem is that Pennsylvania’s elected leaders have not invested sufficient funds to support those efforts. EPA also has an important role to play, working with its federal partners, to provide additional resources to reduce pollution damaging the Commonwealth’s rivers and streams.”

The Blueprint, however, is not just about clean water. Taking the actions necessary to reduce pollution will support local businesses, create jobs, and provide additional environmental and public health benefits—all of particular importance in our current national public health and economic crisis.

“After decades of failed commitments, the Blueprint is working. Pollution is down, crabs are rebounding, and the dead zone is getting smaller,” Baker said. “EPA’s failure to hold Pennsylvania and New York accountable undermines the integrity of this historic federal-state partnership. EPA is the enforcer, just as the law requires. It is up to the courts to compel EPA to do its job. Clean water for our children and grandchildren will be the reward.”

While CBF recognizes that the federal government, the states, and communities are now saddled with the additional burden of a pandemic, the long-term benefits to the environment, to public health, and to local economies are inextricably entwined. Compelling EPA to require the states to implement the Blueprint by 2025 will benefit all in the region.

Also signing on to CBF’s NOI:

Anne Arundel County’s 588 square miles of land includes more than 500 miles of shoreline on the Chesapeake Bay and its tributaries. Its 580,000 residents and countless tourists are drawn to the county to enjoy the Bay, fresh seafood, and numerous water-based recreational opportunities. Travel and tourism spending in the county is estimated at over $3.5 billion annually, providing support for over 30,000 workers. The county has invested more than $500 million over the last decade to protect this vital natural, economic and cultural resource.

“Anne Arundel County residents have invested far too much in the Chesapeake Bay restoration effort to watch from the sidelines as upstream states and the EPA abandon their obligations,” said Anne Arundel County Executive Steuart Pittman. “Since the federal government refuses to lead, placing our local economy, our residents, and our very way of life at risk, I must ask the courts to intervene and make them lead.”

Robert Whitescarver owns and operates a farm in Virginia, raising livestock. He is a former Natural Resource Conservation Service representative, who spent his career educating farmers on the benefits of protecting farmland and improving water quality in local streams and rivers. He also teaches a class on sustainable agriculture at James Madison University. “All jurisdictions need to do their fair share. The efforts that Virginia and Maryland farmers have put into sustainable farming are harmed by EPA’s failure to require all jurisdictions to meet the commitments they agreed to,” he said.

Robert T Brown, Sr. is the President of the Maryland Watermen’s Association. He observed that Maryland watermen and the Chesapeake Bay and its tributaries have suffered for many years due to EPA’s failure to enforce the Clean Water Act. With the pollution of waste and debris flowing from upstream states, through the Susquehanna River feeding into the Chesapeake Bay creates red tides, low oxygen and dead zones. This affects the survival of oyster larvae, crabs, clams and fish. “Remember water runs downhill with these pollutants and for these reasons the Maryland Watermen’s Association hopes through this law suit it will force the EPA to protect and enforce the health of the Chesapeake Bay and its tributaries,” he said.

Press Call Recording, May 18, 2020

Featured on the call are William Baker, President, Chesapeake Bay Foundation; Jon Mueller, CBF Vice President, Litigation; Brian Frosh, Maryland Attorney General; Mark Herring, Virginia Attorney General; Karl Racine, District of Columbia Attorney General; and Steuart Pittman, Anne Arundel County Executive.

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